Appellant
Christopher Welshans was convicted of distribution and
possession of child pornography in violation of 18 U.S.C.
§ 2252. In this direct appeal, Welshans raises two
claims. First, he argues that his due process right to a fair
trial was violated because the prosecution informed the jury,
through both evidence and argument, that his child
pornography files included deeply abhorrent videos and images
of bestiality, bondage, and acts of violence against very
young children. Second, Welshans raises a procedural
sentencing claim, challenging the application of the
obstruction of justice enhancement.

Regarding
his first claim, we agree with Welshans on two points-that
the challenged evidence was inadmissible under Rule 403 of
the Federal Rules of Evidence and United States v.
Cunningham, 694 F.3d 372, 391 (3d Cir. 2012), and that
the prosecutor's closing argument improperly appealed to
the passions of the jury. However, we conclude that the
misconduct did not so infect Welshans's trial with
unfairness as to violate due process. Therefore, we will
affirm his conviction. As to Welshans's sentencing claim,
we will reverse and remand for resentencing.

I

A

In
February 2014, the Pennsylvania Office of Attorney General
determined that child pornography was being shared by an
Internet Protocol (IP) address associated with a subscriber
later identified as Welshans's aunt. Law enforcement
agents executed a search warrant on her home on March 21,
2014 at 7:30 a.m. The agents found no child pornography, but
learned that Welshans, who lived nearby, used the wireless
Internet at his aunt's house.

Immediately
thereafter, half of the agents went to Welshans's house
to set up surveillance and to make note of any people leaving
or entering. The other agents quickly obtained a search
warrant.

Around
the same time, Welshans's aunt called him with a warning
that police officers were "on their way" to his
house, App. 497, and were "looking for stuff"
involving his computers, App. 495. At 9:30 a.m., Welshans
began moving files into his laptop computer's recycling
bin.

At
10:10 a.m., agents executed a search warrant at
Welshans's home. Welshans, who was combative, was
"detained, " handcuffed, and removed from the
house. App. 339. He was held by two agents at the rear of a
marked police car, and later detained un-cuffed inside the
cruiser.

Meanwhile,
Welshans's laptop computer continued to move files into
the recycling bin. As explained at trial, this process could
run automatically because, after a user selects multiple
files to drag into the recycling bin, the process runs until
all of the selected files are moved. This process was
interrupted at 11:05 a.m. by an agent, who discovered
Welshans's laptop and pulled out its battery. By this
time, approximately seven hundred and fifty files had been
moved into the recycling bin. They were easily restored, and
none were lost.

In
total, the Government recovered an extensive collection of
child pornography files from both the laptop and from
Welshans's desktop computer-over ten thousand images and
hundreds of videos. Welshans did not dispute that the
recovered material was child pornography. Nor did he dispute
that child pornography had been distributed through a
file-sharing network from his laptop.

Welshans
admitted that he was the sole user of his laptop and desktop
computers. (A Government expert reached the same conclusion
based upon a forensic review of them). Welshans also admitted
that he used his aunt's wireless Internet, the IP address
that distributed the child pornography. He conceded that he
installed and used a file-sharing network on his laptop, and
that he was at his aunt's house on March 20, 2014-the
last date that child pornography files were added to his
laptop and the day before his arrest.

But
Welshans disputed whether he knew that there was
child pornography on his computers. He testified and denied
any such knowledge, but offered "no explanation"
for how child pornography "ended up on [them]."
App. 513.

B

As
stated above, the Government recovered an extensive trove of
child pornography from Welshans's computers. Exactly what
the jury heard about the content of these files is central to
this appeal, and so we must describe this content in detail.
See Cunningham, 694 F.3d at 377 n.8 (confronting the
same problem).

This
content, as will become clear, was particularly
"loathsome" even within the universe of child
pornography crimes. Id. at 381 n.10. Its particular
nature elicits strong responses of disgust and anger.
Therefore, for the sake of the reader, we will only summarize
the evidence. This summary, it bears noting, should not be
taken as a substitute for the actual trial evidence, which
was far more explicit and which forms the basis for our Rule
403 analysis.

The
parties addressed the content of the child pornography to be
admitted at trial, in part, via pretrial motions. Welshans
offered to stipulate that the videos and images recovered
constituted child pornography as a matter of law. The
Government rejected the proposed stipulation. Instead, it
sought to introduce a small subset of the images and videos
recovered and promised not to introduce exceedingly violent
and graphic ones. The Government went on to explain that, in
light of this Court's decision in Cunningham,
694 F.3d at 391, it had "specifically excluded
bondage" from the proffered videos to be shown to the
jury. App. 52. Providing one deeply disturbing example, the
Government specified that it would not introduce videos
"show[ing] a nine-year-old girl bound with yellow rope
on her arms and legs being sexually abused by both an adult
male and a dog. We're not showing any of that . . .
." App. 51.

As to
the two videos to be shown to the jury, the District Court
found that they were "prejudicial" and
"disturbing, " but that the unfair prejudice did
not outweigh their probative value. App. 58. The District
Court found that the selected videos were admissible under
Rule 403 "[g]iven that the government is proposing this
very limited, highly condensed and representative sample of
the total amount of evidence that exists and also given the
fact that the government has presented . . . limiting
instructions." App. 58.

Pursuant
to this pretrial ruling, the Government showed the jury two
video clips, without sound, for approximately two and a half
minutes. The District Court gave cautionary instructions both
before and after playing the videos and during the charge.

These
two videos, however, were not the only evidence presented to
the jury regarding the nature of the child pornography
recovered from Welshans's computers. While the Government
did not show any videos or images it deemed inadmissible
under Cunningham, it did tell the jury about
them-and repeatedly. It introduced both testimony and
exhibits that described horrific sexual acts of bestiality,
bondage, and violence perpetrated on very young children,
including babies.

To
summarize the evidence at issue we begin with Exhibit 2. This
Government Exhibit contained five, detailed, paragraph-length
descriptions of abhorrent acts of bestiality, bondage, and
violence against children. The descriptions include gruesome
references to a young child being sexually victimized by man
and a dog, being forcibly bound with rope, strapped with a
belt, blindfolded, and forced to wear a choker collar. This
Exhibit was sent into the jury room during deliberations. In
addition, an agent read portions of Exhibit 2 aloud to the
jury, including references to the child victim being
subjected to bestiality and bondage.

Other
exhibits reiterated the message that Welshans possessed
deeply abhorrent videos and images of child pornography. The
Government introduced disturbing file names and file paths
that described, for example, the rape of a one year old baby,
the anal rape of a child, and a sexual assault by a dog.
These too were sent to the jury room during deliberations. A
few of these file names were circled in red before the jury.
See App. 332 ("I'll circle it
here[.]"). The prosecutor and witnesses read others
aloud to the jury. The jury also heard that the file names
were consistent with their content. For example, an agent
testified that file names including the terms "1yo, 2yo
are indicative . . . of what the subject matter would
be"-child pornography depicting sexual assaults
perpetrated on one and two year old toddlers. App. 406.

Emphasizing
the point, the Government elicited testimony from three
separate agents that the videos shown to the jury were not
the worst of the child pornography recovered. One agent told
the jury that there were "worse" videos depicting
"bondage and bestiality." App. 295. Another agent
testified that he found "child pornography involving
infants." App. 428. He told the jury that one thousand
five hundred images "depict[ed] the rape or molestation
of toddlers, babies, and infants." App. 430. He told the
jury that the videos depicted acts of sexual violence on
children, including "bondage" and "penetration
of prepubescent children." App. 431-32. He testified
that what the jury was shown was not "representative of
the full substance" of the child pornography recovered
because there were "far more violent representations on
the computer, far younger victims on this computer."
App. 442. Another agent testified that there were "worse
images or videos, " in which a child known to the
testifying agent "is bound by rope and belts and . . .
forced to have sex with a dog." App. 467.

In
addition to this evidence, the Government's opening and
closing statements also highlighted the horrific nature of
some of the child pornography recovered from Welshans's
computers. During its opening statement, the prosecutor told
the jury that the videos to be shown were "not nearly
the worse [sic] of this selection" and "not the
most violent." App. 252-53. In closing, the prosecutor
"pull[ed] up Exhibit 2" and asked the jury to
"[r]emember some of the things . . . read to us, some of
the horrible, disgusting terms . . . read to us that the
defendant possessed and distributed." App. 658. The
Government went on to argue that "[t]here were images
and videos of a little girl, a child being forced to do
horrible things with dogs, a child being tied up, bound,
collar around her neck, naked." App. 658. The Government
argued to the jury "[w]hat you saw wasn't the most
violent, it wasn't the most horrific, it wasn't the
worse of the worse [sic] . . . It was a small cleaned-up
portion just so you as the jurors would have the evidence . .
. ." App. 659.

C

The
jury convicted Welshans of distribution and possession of
child pornography. 18 U.S.C. §§ 2252(a)(2), (b)(1),
(a)(4)(B). At sentencing, the District Court applied numerous
Sentencing Guideline enhancements for specific offense
characteristics, including enhancements for material
involving "a prepubescent minor or a minor who had not
attained the age of 12, " for material portraying
"sadistic or masochistic conduct or other depictions of
violence; or . . . sexual abuse or exploitation of an infant
or toddler, " and for the number of files involved.
U.S.S.G. §§ 2G2.2(b)(2), (4), (7)(D).

The
District Court also applied a two-level enhancement for
obstruction of justice. U.S.S.G. § 3C1.1. It found that
the enhancement applied because Welshans moved files into his
laptop's recycling bin in a "panic" after
receiving a call from his aunt that the police were on their
way to his house. App. 1053. This enhancement increased the
offense level to 39. Welshans had a criminal history score of
zero, which produced a Guideline range of 262 to 327 months.
The Court varied downward to offense level 34, resulting in a
final Guideline range of 151 to 188 months. It sentenced
Welshans to the low end of the Guidelines range: 151
months' imprisonment and 10 years' supervised
release. This timely appeal followed.

II

The
District Court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742. We review an unpreserved prosecutorial
misconduct claim for plain error. Gov't of the Virgin
Islands v. Mills, 821 F.3d 448, 456 (3d Cir. 2016). The
plain error test requires (1) an error; (2) that is
"clear or obvious"; and (3) "affected the
defendant's substantial rights . . . which in the
ordinary case means he or she must 'show a reasonable
probability that, but for the error, ' the outcome of the
proceeding would have been different."
Molina-Martinez v. United States, 136 S.Ct. 1338,
1343 (2016) (quoting United States v. Dominguez
Benitez, 542 U.S. 74, 76, 82 (2004)). If these
conditions are met, we will exercise discretion to correct
the error if it "seriously affects the fairness,
integrity or public reputation of judicial proceedings."
Id. (quoting United States v. Olano, 507
U.S. 725, 736 (1993)). We exercise plenary review of a
district court's interpretation of the Sentencing
Guidelines and review its factual findings for clear error.
United States v. Miller, 527 F.3d 54, 75 (3d Cir.
2008).

III

In his
first claim, Welshans asserts that the Government committed
prosecutorial misconduct by informing the jury, through
evidence and argument, that the child pornography recovered
included deeply disturbing acts of bestiality, bondage, and
the violent sexual assault of very young children. We agree
with Welshans that the prosecution crossed the line.
Nevertheless, we conclude that the errors did not render his
trial fundamentally unfair.

A

The Due
Process Clause of the Fifth Amendment guarantees the right to
a fair trial including the right to be free from
prosecutorial misconduct. See United States v.
Liburd, 607 F.3d 339, 343 (3d Cir. 2010). Our analysis
of a prosecutorial misconduct claim proceeds in two steps.
Id. at 342. First, we consider whether there was
misconduct. "If so, we proceed to determine whether that
misconduct 'so infected the trial with unfairness as to
make the resulting conviction a denial of due process,
'" taking into account the entire proceeding.
United States v. Repak, 852 F.3d 230, 259 (3d Cir.
2017) (quoting Mills, 821 F.3d at 456 (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974))). We consider "the prosecutor's offensive
actions in context and in light of the entire trial,
assessing the severity of the conduct, the effect of the
curative instructions, and the quantum of evidence against
the defendant." Moore v. Morton, 255 F.3d 95,
107 (3d Cir. 2001).

B

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;At the
initial step of our analysis, Welshans asserts that the
prosecution committed misconduct in two ways: (1) that it
"systematically inject[ed] inadmissible . . .
evidence" at trial, United States v. Morena,
547 F.3d 191, 194 (3d Cir. 2008), and (2) that the
prosecutor's closing argument crossed the line by
inflaming the passions and emotions ...

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